Citizens United: An International Anomaly
"We have one of the worst election processes in the world right in the United States of America, and it's almost entirely because of the excessive influx of money. . . . We've become, now, an oligarchy instead of a democracy."
-Former President Jimmy Carter[i]
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Introduction
The campaign finance system of the United States was radically changed by Citizens United v. Federal Election Commission,[ii] where the Supreme Court held that independent political expenditures could not be limited by the Government. Additionally, the Court held that this ban on restrictions for independent expenditures also stretched to corporations, granting corporations the same political speech protection as natural Americans.[iii] The Court’s ruling in Citizens United has further exacerbated the current problems with the American electoral system where the United States has the longest political campaigns, the most expensive campaigns, and the most campaign spending by corporations in the world.[iv].
In a League of its Own
The United States spends more money on political campaigns and elections than any other country.[v] Additionally, all this ridiculous spending on political campaigns is not acting for the benefit of the market place of ideas, instead the actual effect is that the wealthiest Americans are drowning out and effectively silencing the vast majority of Americans, evidenced by the fact that a mere 158 families contributed “almost half of all the seed money raised to support Democratic and Republican presidential candidates.”[vi] American presidential campaigns are the longest in the world, resulting in many elected officials spending years distracted from their actual responsibilities by fundraising and campaigning.[vii] The length of campaigns also contributes to the costs of the campaigns since candidates have longer to fundraise huge sums of money in order to bombard the airwaves with ads, many of which are negative ads created and paid for by virtually anonymous PACs.[viii] However, many other countries have adopted different campaign finance systems, which each comes with their own benefits and flaws.
International Examples
Countries such as Japan, Canada, and France have strict limits for both contributions and expenditures.[ix] Such a system ensures that every citizen has an equal ability to participate in the political process without having their voice drowned out and limits the amount of money involved in elections. This limits the risk of corruption and the perception thereof. However, some would argue that this unfairly limits the free speech of individuals who wish to contribute or expend over the respective limit. Ultimately countries that have limits on both contributions and expenditures have elections where less money is involved, and which conceivably makes it easier for new ideas and candidates to break through. Such a system also preserves the integrity of the electoral process, decreasing the risk of quid pro quo corruption, which has been a problem even in other Western democracies without contribution and expenditure limits, such as the United Kingdom. [x] Other countries such as Australia and Germany have no limits on campaign finance or expenditures; however, many of the countries without limits prohibit television advertising, which is by far the top expense in most American elections.[xi] Additionally, countries without contribution and expenditure limits, such as Germany and Australia, have largely funded public campaigns, which also help to preserve the integrity of the election, allowing candidates to use public funds to disperse their ideas instead of having to fundraise such as in American elections.
Improving the American System
In order to make the American campaign finance system work more efficiently, it should move towards public funding and expenditure limits. In America’s current political landscape this will be difficult to accomplish, yet there are a few ways that it could be accomplished. Because Citizens United is one of the Supreme Court’s least popular rulings with up to 80% of Americans opposing it, and the Court’s composition may be different the next time the Court hears a campaign finance case, the Supreme Court may be open to overturning Citizens United due to public opinion. [xii]
Another route to overturning the effects of Citizens United would be for the Supreme Court to hold that Corporations do not have the same political speech rights as real citizens. Way back in the Court’s jurisprudence the Court had held that a voluntary association of persons created by law could not be a citizen of the State under the Constitution.[xiii] A return to that logical and natural understanding of citizenship could result in the Court allowing restrictions based on corporate identity, since they are not citizens.[xiv]
Conclusion
The Court’s flawed ruling in Citizens United has further exacerbated the current problems with the American electoral system where the United States has the longest political campaigns, the most expensive campaigns, and the most campaign spending by corporations in the world.[xv] The United States should look at the campaign finance systems used in other countries, such as those with strict limits for contributions and expenditures and those that provide public funding, in order to make our system more efficient, fair, and just.
[i] Andrea Germanos, Jimmy Carter: Citizens United 'Gives Legal Bribery a Chance to Prevail', Common Dreams (Feb. 3, 2016), http://www.commondreams.org/news/2016/02/03/jimmy-carter-citizens-united-gives-legal-bribery-chance-prevail.
[ii] 558 U.S. 310 (2010).
[iii] Id. at 359-64.
[iv] Political Finance Data for United States, Institute for Democracy and Electoral Assistance, http://www.idea.int/political-finance/country.cfm?id=231 (last visited Sep. 27, 2015); Why American; Elections Cost So Much, The Economist (Feb. 9, 2014), http://www.economist.com/blogs/economist-explains/2014/02/economist-explains-4.
[v] Institute for Democracy and Electoral Assistance, supra note 4.
[vi] The Families Funding The 2016 Presidential Election, New York Times, available at http://www.nytimes.com/interactive/2015/10/11/us/politics/2016-presidential-election-super-pac-donors.html?_r=0.
[vii] How Presidential Campaigns Became Two Year Marathons, New York Times, available at http://www.nytimes.com/2015/04/17/upshot/how-presidential-campaigns-became-two-year-marathons.html.
[viii] Id.; J.F., Why American Elections Cost So Much, The Economist (Feb. 9, 2014), http://www.economist.com/blogs/economist-explains/2014/02/economist-explains-4.
[ix] How Our Campaign Finance System Compares To Other Countries, The American Prospect, http://prospect.org/article/how-our-campaign-finance-system-compares-other-countries (last visited March 31, 2016).
[x] Id.
[xi] Id.
[xii] Citizens United Poll: 80 Percent Of Americans Oppose Supreme Court Decision, Huffington Post (May 25, 2011).
[xiii] See Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).
[xiv] Paul v. Va., 75 U.S. 168 (1869) (finding that a voluntary association of persons, or an association into a body politic created by law, was not a citizen of a state within the meaning of the Constitution, and dismissed the suit), overruled, Humana Inc. v. Forsyth, 525 U.S. 299 (1999).
[xv] Political Finance Data for United States, Institute For Democracy and Electoral Assistance, http://www.idea.int/political-finance/country.cfm?id=231 (last visited Sep. 27, 2015); Why American; Elections Cost So Much, The Economist (Feb. 9, 2014), http://www.economist.com/blogs/economist-explains/2014/02/economist-explains-4.